Agenda 10/14/2008 Item #16K 1A' c �nda Item No. 15K1
October 14, 2008
Page 1 of 11
EXECUTIVE SUMMARY
Recommendation to approve a Settlement Agreement and Release in the lawsuit styled
Casimir Bator v. Collier Count),, Case No. 07- 0065 -CA. (Fiscal Impact 820,491.00)
OBJECTIVE: That the Board of County Commissioners approve the Settlement
Agreement and Release for payment of full compensation and settlement for any and all claims,
causes of action, property rights, damages and costs or attorney's fees in the lawsuit styled
Casimir Bator v. Collier Countv. Case No. 07- 0065 -CA.
CONSIDERATIONS: Mr. Bator filed an action against the County in the Circuit Court of
the Twentieth Judicial Circuit in and for Collier County, Florida, styled Casimir Bator and
Deborah Bator v. Collier County Board of County Commissioners, Case No. 07 -0065. Mr.
Bator asserted claims for trespass, nuisance and ejectment against the County and alleged various
acts and omissions in the Lawsuit. Bator also alleged occasional flooding, creation of an eyesore
and inability to fully utilize his proposed guest house due to the wellhead regulations in
conjunction with the nearby septic system. Prior to settlement, Bator's attorney was going to
seek amendment to plead inverse condemnation. The County has acknowledged that it
encroached upon Mr. Bator's land in the construction of a well site located within public right -
of -way, which encroachment has been surveyed and confirmed, and that during construction
vegetation was damaged by the contractor. Staff has been in negotiations with Mr. Bator since
2003 and settlement has been reached. Both staff and the County Attorney opine that settlement
is reasonable under the circumstances, especially in light of increased costs if this matter
proceeded to trial.
If approved, the County will pay the following costs:
• Compensation: $17,491.00
• Legal Fees: 53.000.00
TOTAL S20,491.00
Attached is the Settlement Agreement and Release.
FISCAL IMPACT: Funds in the amount of $20,491.00 are available in the FY 2009 adopted
budget. Source of funds is Water Administration 408 - 210125.
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board of County Commissioners:
1. Approve the Settlement Agreement and Release; and
2. Approve the expenditure of funds as stated.
PREPARED BY: William E. Mountford, Assistant County Attorney
07-0065-CA !34
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7,enda Item No. 16KI
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Page 3 of 11
COLLIER COUNTY
N
5OARD OF --OUNTY 0010MISSF- E RS
Item Number: 16K1
Item Summary: Recommendation to approve a Settlement Agreement and Release in the lawsuit styled
Casimir Bator v. Collier County, Case No. 07-0065-CA (F!s-,al Impact $20,491,00)
Meeting Date: 10J14!2098 9100.00 AM
Prepared By
William Mountford
Assistant County Attorney
Date
County Attorney
County Attorney Office
9/2612008 11:17:39 AM
Approved By
William Moun"ford
Assistant County Attorney
Da-e
County Attorney
Cou;fty Attorney Office
912612:008 11 :5 6 AM
Approved By
Pamela Libby
Wat: -r Op�,-atitms Manager
DFte
Public Utilities
Water
9!21"2008 2:47 P[V1
Approved By
Paul WiattaUSCII
D i r o r
Public UtiRies
"'Vat-r
3 7:-3 kJ 1A
Approved By
Jeff Ktalzkovv
County Attorney
Offi7'_
2. 2
Approved By
OV1,13 Coordirici,or
County Wmaq:.-r's
'-f
Approved By
John A. Yonkc3ky
County Ullar-ac.-i!r's 0"ice
Approved By
James V. Mudd C 7, % n iy
0-oa M-1 of '-Oury C,' wx L I ri'l V Ml E i-, J- I" S (D
Commissioners
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Acenda 4teiri No. i M
(Dct::ber 14, 21003
Page 4 of ,1
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ( "Agreement and Release ") is entered into
and made on this day of
2008, by and between Casimir Bator and
Deborah Bator (hereinafter "BATOR") and Board of County Commissioners of Collier County,
Florida, as Governing Body of Collier County, and ex- Officio Governing Board of the Collier
County Water -Sewer District (the "County ").
WITNESSETH:
WHEREAS, BATOR filed an action against the County in the Circuit Court of the
Twentieth Judicial Circuit in and for Collier County, Florida, and that action is styled Casimir
Bator and Deborah Bator v. Collier County Board of County Commissioners, Case No. 07 -0065
(hereafter referred to as the "Lawsuit ");
WHEREAS, BATOR has asserted claims for trespass, nuisance and ejectment against
the County and has alleged various acts and omissions in the Lawsuit;
WHEREAS, the County has acknowledged that it encroached upon BATOR's land in
the construction of a well site located within public right -of -way, which encroachment has been
surveyed and confirmed, and that during construction some vegetation was damaged by the
contractor; and
WHEREAS, the County without admitting any liability or fault as to the other
allegations nevertheless recognizes the cost and uncertainties of litigation and now desires to
fully and finally resolve any and all claims, known or unknown, asserted or that could have been
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asserted by BATOR in the Lawsuit, including but not limited to all claims for damages, inverse
condemnation, equitable relief, attorney's fees, costs, or expenses of any kind whatsoever; and
WHEREAS, BATOR and the County desire to reduce their settlement of the Lawsuit
and all other claims that could have been asserted in the Lawsuit or that relate in any way to or
arise directly or indirectly from the events or conduct referred in the complaint filed in the
Lawsuit to a writing so that it may be binding upon both parties.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
considerations set forth in this Agreement and Release, the sufficiency of which is hereby
acknowledged, and with the intent to be legally bound, BATOR and the County mutually agree
to the following:
BATOR and the County agree to adopt and incorporate the foregoing recitals,
sometimes referred to as "Whereas Clauses ", by reference into this Agreement and Release.
?. Within thirty (30) days of the Effective Date of this Agreement and Release,
BATOR will convey a perpetual utility, access and maintenance easement under. over, upon and
across iiicir property measuring five feet by forty feet and more particularly described in Exhibit
"A." attached hereto and incorporated herein (which conveyance and delivery will be called the
Closing.) This Easement will be granted in the form attached as Exhibit A, and will provide
County with permanent rights to access, operate and maintain the well adjacent to and within the
easement area, without interference from BATOR or any subsequent owner.
3. At Closing the County will pay to BATOR, as full and final compensation and
settiemeent 151—Ir any and all claims, causes of action, property rights, damages, hosts or attot.mLey's
fees the total sum of Twenty Thousand Four Hundred Ninety One and No /100 Dollars
,r �ida heir) No. 15K1
October 14, 2008
Page 6 of 11
($20,491.00), made payable as follows: Felden and Felden, P.A Trust Account, c/o Christian B.
Felden, Esquire, 1100 Fifth Avenue S., Suite 201, Naples, FL 34102.
4. Except for any claim to enforce the terms and conditions of this Agreement and
Release, BATOR, on behalf of themselves, their heirs and assigns, shall and hereby does fully,
finally and unconditionally release, acquit, remise, satisfy and forever discharge the County, its
predecessors, successors, heirs, assigns, employees, former employees, elected officials, officers,
directors, owners, agents, representatives, attorneys, insurers, sureties and affiliates from any and
all manner of action or actions, cause or causes of action, suits, debts, dues, sums of money,
reckonings, accounts, covenants, charges, damages, obligations, liabilities, contracts, promises,
judgments, executions, claims, complaints, whether legal or equitable and whether known or
unknown which BATOR has or could have asserted in the Lawsuit, or which BATOR now has
or may have against the County, whether legal or equitable and whether known or unknown,
arising out of or relating in any way to the claims or allegations made in the Lawsuit, or that
could have been made in the Lawsuit.
5. BATOR and the County agree that immediately upon execution of this
Agreement and Release by the parties, BATOR shall file a Notice of Voluntary Dismissal With
Prejudice of the Lawsuit.
6. BATOR and the County agree that this Agreement and Release constitutes the
entire agreement between BATOR and the County and that there are no other agreements, oral or
written, between them relating in any way to any subject of this Agreement and Release. In this
regard, BATOR and the County agree that this Agreement and Release is the product of mutual
negotiation and no doubtful or ambiguous term or provision hereof is to be construed more
strictly against the party that drafted/physically prepared the Agreement and Release. BATOR
EK1
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and the County further agree that this Agreement and Release supersedes and replaces all prior
agreements and understandings with respect to the subject matter of this Agreement and Release.
7. In the event of an alleged breach of this Agreement and Release, BATOR and the
County hereby agree that the claims asserted or that could have been asserted in the Lawsuit are
hereby extinguished and that the sole remedy for breach of this Agreement and Release shall be
for specific performance of its terms and conditions. In this regard, BATOR and the County
further agree that the sole venue for any such action for specific performance shall be in the
Twentieth Judicial Circuit in and for Collier County, Florida in Naples, Florida.
8. BATOR and the County agree that this Agreement and Release shall be governed
by the laws of the State of Florida.
9. This Agreement and Release shall be binding upon the predecessors, successors,
transferees, affiliates, heirs, and assigns of BATOR and the County.
10. The effective date of this Agreement and Release shall be the date it is executed
by the Chainnan of the Board of County Commissioners of Collier County, Florida as appears
below.
IN WITNESS WHEREOF, CASIMIR BATOR and DEBORAH BATOR and the
BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, as
Governing Body of Collier County and Ex- Officio Governing Board of the Collier County
Water -Sewer District, have entered into this Agreement and Release on the day and year first
above written.
Item No. 15K1
October 14. 2003
Page 3 of 11
BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA, as governing
body of Collier County and ex- Officio Governing
Board of the COLLIER COUNTY WATER
SEWER DISTRICT
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
Date:
DATE:
TOM HENNING, Chairman
CASIMIR BATOR
DATE:
DEBORAH BATOR
Approved as to form and
legal sufficiency:
William E. Mountford
Assistant County Attorney
/ vA t
07- 0153 -CAM26
«u :Y Nc. 16K1
PROJECT: GG Wellfield Reliability Improvements Ocichr 14, Kii08
FOLIO: 37549680006 1' -,wA 0, of 11
UTILITY EASEMENT
THIS EASEMENT, made and entered into this day of , 2008, by
CASIMIR S. BATOR AND DEBORAH BATOR, HUSBAND AND WIFE, as Grantors, to the
BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE
GOVERNING BODY OF COLLIER COUNTY AND AS EX- OFFICIO THE GOVERNING
BOARD OF THE COLLIER COUNTY WATER -SEWER DISTRICT, 3301 East Tamiami Trail,
Naples, Florida 34112, its successors and assigns, as Grantee. (Wherever used herein the
terms "Grantors" and "Grantee" include all the parties to this instrument and their respective
heirs, legal representatives, successors or assigns.)
WITNESSETH:
Grantors, for and in consideration of TEN DOLLARS ($10.00) and other valuable
consideration paid by the Grantee, the receipt and sufficiency of which is hereby acknowledged,
hereby conveys, grants, bargains and sells unto the Grantee, its successors and assigns, a
perpetual, non - exclusive easement for utility, access and maintenance purposes, on the
following described lands located in Collier County, Florida, to wit:
See attached Exhibit "A" which is incorporated herein by reference.
Subject to easements, restrictions, and reservations of record.
This is HOMESTEAD Property
TO HAVE AND TO HOLD the same unto the Grantee together with the right to enter upon
said land, for purpose of accessing, operating and maintaining the well site and associated
water lines, pipes, telemetry, fencing and other equipment or improvements appurtenant thereto
or thereunder. Grantors and Grantee are used for singular or plural, as the context requires.
The easement granted herein shall constitute easements running with the land and shall burden
the lands described above.
IN WITNESS WHEREOF, the Cantors have caused these presents to be executed the
date and year first above written.
WITNESSES
(Signature)
(Print Name)
(Signature)
(Print Name)
STATE OF
COUNTY OF
By
Casimir S. Bator
By:
Deborah Bator
991 Wilson Blvd. North
Naples, FL 34120
The foregoing Utility Easement was acknowledged before me this day of
2008 by Casimir Bator and Deborah Bator, who are personally known to me
or who have produced as identification.
(affix notarial seal)
(Signature of Notary Public)
(Print Name of Nntary Pi hlic_1
NOTARY PUBLIC
Serial /Commission #:(if any)
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